Since Medina Valley ruling, he has heard threats and calls for ouster.

Federal Judge Fred Biery once sent someone to jail for "aggravated stupidity" after the man uttered a four-letter profanity in court.

Photo By EDWARD A. ORNELAS/Edward A. Ornelas/Express-News

Medina Valley High School graduates take part in a prayer lead by valedictorian Angela Hildenbrand (not pictured) during the Medina Valley High School graduation held Saturday June 4, 2011 at Panther Stadium in Castroville, Tx. (PHOTO BY EDWARD A. ORNELAS/eaornelas@express-news.net)

Federal Judge Fred Biery has issued rulings peppered with poems, laced with humor and sprinkled with references to baseball.

He once sent someone to jail for “aggravated stupidity” after the man uttered a four-letter profanity in court. When a prospective juror demanded to be paid $100 an hour for his service, Biery had a counteroffer: a “chauffered ride” by U.S. marshals to a contempt of court hearing.

The chief judge of the federal court system's Western District of Texas is no stranger to controversial legal fights, having ruled on toll roads, contamination of neighbors' groundwater by the former Kelly AFB and San Antonio's attempts to regulate strip clubs.

But a recent case has drawn more than criticism — along with threats. There's also a movement to oust him.

In a lawsuit filed in May by the parents of an agnostic student, Corwyn Schultz, the judge granted the family's request for a temporary order barring organized public prayer at the Medina Valley High School graduation.

Appeals judges disagreed and allowed prayer at the ceremony in Castroville. But long after the prayers, pomp and circumstance, the fallout continues, with Biery as its target.

Federal marshals have him on a nearly round-the-clock security detail. The federal courthouse has received more than 500 calls and numerous letters regarding the case. Some writers or callers identified themselves as Christians — then proceeded to say that Biery should “die from cancer” or drink human waste, or that they will “kick his ass.”

A conservative Christian group in Wichita Falls asked him to step down. Presidential hopeful Newt Gingrich was working Biery into his stump speeches by mid-June, calling for the elimination of the chief judge's post.

In previous controversies, Biery has shrugged off criticism. He has limited his comments on the school prayer case because the lawsuit still is pending on allegations that the Medina Valley Independent School District routinely forced prayer on students at school-sponsored events.

But Biery knows he has some support — about half the letters backed him and slammed the district.

“The court will speak through its written opinion,” he said. “The judicial process and the rule of law take time.”

The case

Biery has acquired a reputation for playfulness in his rulings, but the one in late May had a serious tone.

Finding that Schultz's rights might be violated by school-sponsored prayer, Biery's order said graduation speakers could make “statements of their own beliefs” but the school district had to instruct them not to pray or urge the audience to pray, and said school administrators could be jailed if they didn't comply.

The district appealed, backed by Texas Attorney General Greg Abbott, who said the order forced school officials to be “thought and speech police.” Valedictorian Angela Hildenbrand, who wanted to pray at commencement, tried to join the suit on free-speech grounds.

The day before the June 4 graduation, a three-judge panel with the 5th U.S. Circuit Court of Appeals overturned Biery's order, saying the Schultzes had not shown they were likely to prove the school had sponsored individual prayers. By then, the district had complied with Biery's instructions to replace the words “convocation” and “benediction” with more secular terms in its commencement program.

In issuing his May ruling, Biery seemed swayed by arguments that prayers at public school graduation violates Supreme Court precedent, in particular a 1992 ruling in a case called Lee vs. Weisman. In 2000, the high court ruled against school-sanctioned, student-led prayers before football games in a Texas case.

“I think judges have to understand that they're going to be subject to criticism no matter how they decide school prayer cases,” said Michael Ariens, who teaches constitutional law at St. Mary's University School of Law and has published a book on religious liberty. “The Supreme Court provides some guidance for lower court judges but leaves a great deal unsaid. Looking at Judge Biery's opinion and the 5th Circuit opinion, I think one can find each is defensible in part due to the Supreme Court's open-ended and occasionally vague pronouncements on this subject.”

Going after a judge

In Castroville on June 4, the commencement crowd prayed. The Schultzes stayed away. Texas Gov. Rick Perry and U.S. Sen. John Cornyn continued to blast Biery's opinion in congratulatory news releases.

“It was not our intention to remove all voluntary references to God from the program” the Schultzes said in a prepared statement. “We simply wanted to stop district-sponsored prayers. ... Public education is ‘public' for a reason; it is supposed to include everyone.”

Something else was brewing.

“We're asking for his resignation,” said businessman Randy Funston, who heads a Wichita Falls-based Christian group, the AGAPE Movement, which had urged people to travel to Castroville on graduation night to protest. “The American republic was founded on Judeo-Christian principles and we will no longer tolerate our public servants elevating the special interests of a small minority at the expense of the constitutional rights of the majority.”

Gingrich began railing against Biery at campaign stops. Recognizing that it takes a fairly narrow circumstance to impeach a federal judge, the candidate pointed out that Congress can simply eliminate judicial positions.

His campaign office didn't respond to requests for comment, but at a stop in New Orleans in mid-June, the New Orleans Times-Picayune quoted Gingrich as saying: “We need to reset the judiciary, explain to them the limits of the American Constitution and prove to them that judges appointed for life cannot be dictators and they cannot threaten our children with jail for saying the word ‘prayer.'”

Editors of the conservative publication Human Events and the website redstate.com responded with a petition asking Congress to abolish the position of chief judge for the Western District of Texas. It was sent, with 1,200 signatures to House Speaker John Boehner, R-Ohio, and Senate Majority Leader Harry Reid, D-Nevada.

Boehner and Reid didn't respond to requests for comment.

“This is just political pandering,” said Ayesha N. Khan, legal director for Americans United for the Separation of Church and State, and who argued the case for the Schultzes in front of Biery. “Singling out judges whose job is to enforce a Constitution that cares about minority interests as it does majority interests is picking the lowest-hanging fruit.”

Added Ariens, who isn't involved in the case: “I think when you speak of flashpoint types of issues, like school prayer and issues related to school prayer, they are taken over for political purposes often more than for the legal issues they present.”

Unlikely lightning rod

Biery grew up on San Antonio's Northwest Side, in a neighborhood near Jefferson High School and Woodlawn Lake.

He served in the Army and got his bachelor of arts from Texas Lutheran University and a law degree from Southern Methodist University's Dedman School of Law.

A former Bexar County court-at-law judge, state district judge and state appeals judge, Biery was appointed to the federal bench in 1994 by President Bill Clinton.

In June 2010, Biery was elevated to the post of chief judge, which oversees administrative matters for one of the country's busiest federal judicial districts.

He likes to tell defendants that lawyers are like legal doctors, working with what they have, and sometimes gives crooks the option of choosing their sentence: A brief prison stint now, or probation that could later result in a longer prison sentence if they mess up again.

Biery's rulings can be colorful, quoting from works of philosophy, theology — including religious scripture — and citing even more unusual authorities like songwriter James Taylor.

He occasionally titles them in blunt nonlegalese: “Righteous Indignation Order Concerning Shameful and Unscrupulous Greed by Two Physicians,” for example.

Biery's summary of arguments in the form of poetry may seem flippant, and his actions to jail those who disrupt his court may seem extreme, but they're within ethical and legal bounds, observers said.

Biery has gotten decent marks from lawyers. For example, on “The Robing Room,” a website that lets them rate federal judges, Biery earned a 7.9 rating out of 10.

“Experienced, and intelligent, with a friendly disposition,” one reviewer wrote. “Is willing to do the right thing, and will go out on a limb for a defendant at sentencing when the circumstances call for it, but will slam you if crossed.”